train;" that the plaintiff said, "Maybe you better put me off this train;" that then the conductor pulled the bell-rope to stop the train; that before it fully stopped the plaintiff found his ticket and offered it to the conductor, who refused to take it and put the plaintiff off.

On the part of the defendant the conductor testified that the plaintiff was in the next to the last car; that as he came along he asked him for his ticket; that the plaintiff found what was apparently a ticket, and the occurrence then proceeded as follows: "I asked him for his ticket; he said he would not give it to me until he got to Rome; I said if you don't give me that ticket, I will have to put you off; he said I wont give it to you; I said very well, I will have to stop the train and put you off; I then rang up the train; the train stopped at once; then I told him to get out; he got up and walked out down on the ground; then he wanted me to take the ticket and I refused; I told him I had stopped the train to put him off, and I wouldn't carry him; I didn't stop that train for any purpose except to have him get off; the rules are, ring up the train and put off a man who don't show his ticket or pay his fare."

The nonsuit was granted apparently upon the theory that, as according to the plaintiff's evidence, the ticket was not produced and tendered before the bell was actually rung, therefore the conductor was justified in putting the plaintiff off.

The counsel for defendant claims that the omission to produce the ticket was equivalent to a refusal, and brings the case within Hibbard v. N. Y. & E. R. Co., 15 N. Y. 455. In that case the plaintiff had a ticket from Hornellsville to Scio; had shown it to the conductor once, and then, afterward and after the train had passed another station, was asked to show it again and refused, and was put off. It was held at circuit that he was not bound to show it again; but the court of appeals held that he was, and that a rule to that effect was reasonable, and reversed the judgment.

In O'Brien v. N. Y. & C. H. R. R. Co., 80 N. Y. 236; s. c. 1 Am. & Eng. R. R. Cas. 259, it is said by Rapallo, J., that if, in consequence of the fractious refusal of a passenger to pay the full fare the company has a right to demand, the train is stopped for the sole purpose of putting him off, he is not entitled to insist on continuing his trip on paying the fare, but may be removed from the train. If, however, the stoppage is at a station, a tender before removal would answer. Guy v. N. Y., O. & W. R. Co., 30 Hun. 399; Pease v. D. L. & W. R. Co., 16 W. Dig. 266.

In Maples v. N. Y. & N. H. R. Co., 38 Conn. 558, the rule is laid down that a passenger whose ticket is mislaid is entitled to a reasonable time to find it.

In Railroad Co. v. Garrett, 8 Lea (Tenn.) 438, s. c. 3 Am. & Eng. R. R. Cas. 416, it was held that a passenger who gets upon a

train in good faith, in ignorance of the fact that a tax certificate would not pay his fare, having no intention to impose upon the carrier, cannot be treated as a mere trespasser, but on failure or refusal to pay his fare after request, and after reasonable opportunity allowed to comply, he may be ejected, but if before eviction another person offer to pay the fare, the carrier is bound to receive it and convey the passenger. The offer in that case was after the bell was rung to stop the train. In the present case, if the ticket of the plaintiff was mislaid, and he in good faith was trying to find it, he was entitled to a reasonable time to enable him to do so, if he could, and if, in case of failure to find it after such reasonable opportunity, he was willing and ready to pay his fare, the conductor had no right to put him off. Whether or not the plaintiff was allowed such reasonable opportunity to find his ticket or pay his fare was, upon the evidence on the part of the plaintiff, a question of fact to be determined by the jury. If so, the nonsuit was improperly granted.

A question is made by the appellant that the removal was not at or near any dwelling-house. This is not set up in the complaint, and no point was apparently made about it at the trial. It does not seem important to consider it here.

The judgment should be reversed and nonsuit set aside and new trial granted, costs to abide the event.

Hardin. P. J., and Follett, J., concur.

Tender of Fare in Some Cases is in Time After Expulsion Has Begun. -When the failure of a passenger to pay fare or produce ticket is not morally factious or captious, but arises out of mistake, accident, or the like, it is not too late for him to tender his full fare or his ticket after the train has stopped and the conductor has actually undertaken the expulsion. In such case the conductor is bound to accept the tender, and to allow the passenger to remain on the train. Garrett v. Louisville & N. R. R. Co., 13 Am. & Eng. R. R. Cas. 416; Louisville, N. & Gt. S. R. Co. v. Harris, 9 Lea (Tenn.) 180; s. c. 16 Am. & Eng. R. R. Cas. 374; Guy v. New York, O. & W. R. Co., 30 Hun, (N. Y.) 399; Maples v. New York & N. H. R. Co., 38 Conn. 558. And see Curl v. Chicago, R. I. & P. R. Co., 11 Am. & Eng. R. R. Cas. 85; s. c. 16 Am. & Eng. R. R. Cas. 379.

Passenger is Entitled to Reasonable Time to Find Ticket or Procure Fare. When a passenger fails to present his ticket or pay his fare and endeavors to find or procure same, the conductor is not justified in expelling him immediately, but must give him a reasonable time within which to find his ticket or procure his fare. South Carolina R. R. Co. v. Nix, 68 Ga. 572; Louisville & N. R. Co. v. Garrett, 8 Lea (Tenn.) 438; Maples v. New York, etc., R. Co., 38 Conn. 557; Curtis v. Grand Trunk R. Co., 12 Upp. Can. C. P. 89; Lake Erie & W. R. Co. v. Fixe, 11 Am. & Eng. R. R. Cas. 109; Louisville & Nashville R. R. Co. v. Fleming, supra; Clark v. Wilmington & Weldon R. Co. infra.

CLARK

v.

WILMINGTON & WELDON RAILROAD COMPANY.

(Advance Case, South Carolina, 1885.)

In a suit against a railroad company for damages alleged to have resulted from the action of the conductor in ejecting the plaintiff from the train, it appeared that the plaintiff got on the train at a certain station to go to the next station about four miles distant, without a ticket or money to pay his fare. About twenty-five other persons took the same train to go to the same place, one of whom, as it was shown on the trial, promised to pay the plaintiff's fare before they got on the train, but he did not sit in the same car with the plaintiff. In taking up tickets and collecting fare from passengers, the conductor was told by the plaintiff that he had neither money nor ticket, but would get the money if allowed to go into the rear car and see a fellow passenger. The conductor said: "I have not time to wait; you must get off," and thereupon pulled the bell-rope, stopped the train and put the plaintiff off. The train had made about half the distance between the stations. Held, that the plaintiff was entitled to recover. The conductor should have allowed him a reasonable opportunity to pay his fare; but an offer to pay (and declined by the conductor) after the train was stopped will not entitle him to return to his seat.

Mullen & Moore, for plaintiff.

Day & Zollicoffer, for defendant.

SMITH, C. J.-The plaintiff, while at Whitaker's station, on the defendant's road, awaiting the arrival of the train on which he intended to take passage for Battleboro', a station four miles distant, and being himself without money, made arrangements with two others, Isaac Powell and T. P. Braswell, who were also going on same train, in which each agreed to pay his fare of twenty-five cents, the charge between those points.

When the train came, all three, with twenty or more others, entered it, the plaintiff taking a seat in the forward coach, Braswell in that next behind, and Powell in that where the plaintiff was, or one next in front. When the conductor was passing through the coaches, taking up the tickets and collecting fares from front to rear of the train, he came to the plaintiff, who said he had neither ticket nor money, but would get the fare if allowed to go to the coach behind, from a gentleman sitting there. The conductor refused to do so, saying: "You must get off; I have not time to wait for you. I have something else to do." The train was then about half-way between the stations, moving at a rapid rate, when the conductor stopped the train, and compelled the plaintiff to get out. Braswell would have advanced the money and paid the fare upon application. As the plaintiff descended from the coach and

was on the lowest step, Powell offered to pay the fare, but the conductor declined to receive it, saying: "You are too late; go and attend to your own business.'

In expelling the plaintiff, there was no actual force employed against his person, but the order was given and assistants were present to execute it, and the plaintiff submitted. The action is to recover damages for this ejectment of the plaintiff; and the sole question raised by the appeal is, whether under the circumstances the conductor had a right to put the plaintiff off the train. An instruction was requested for the defendant in the charge given to the jury in these words: "When the conductor demanded of the plaintiff his ticket, and he tendered neither ticket nor money, the conductor had the right to eject the plaintiff." This was refused, and in its stead the jury were directed as follows: "The conductor was not bound to go into the other car to get the fare from Braswell, but if Braswell had money, and was ready and willing to pay the fare of the plaintiff, and plaintiff told him, before he stopped the train and started to eject him, that a friend in the next car would pay his fare, then the conductor ought to have allowed plaintiff a reasonable time to get the fare."

The whole controversy is involved in these two instructions, the one refused and the other given. There can be no question of the right of the officer in charge of a train of passenger coaches to remove any one who has entered and refused to pay his fare, or produce his ticket as evidence of its having been paid to some authorized agent of the company, unless he is traveling with its permission without. Such refusal, in opposition to the rules of the company, presents a case which warrants the officer in charge to require such intruder to leave the train, and if necessary to use such force as is sufficient to accomplish his ejectment. Nor, when the officer has stopped the train, and he is descending the steps and about to pass out, will a tender of the fare entitle him to return to his seat. He forfeits his right of carriage by such misconduct, by breaking his own contract to pay when called on, and it is not regained by his repentance at the last moment, and after he has caused the inconvenience and delay to the company by his wrongful act. The adjudications fully recognize this authority in the carrier, and it is necessary to prevent imposition upon it. Ang. on Car., Sec. 609, Note A.; Thomp. Carr. Pass. 340, Note 5.

Where there has been no refusal to pay the fare and the obligation not disputed, but for some reason, such as the mislaying of the ticket, or loss of pocket-book in which the money is kept, or other adequate cause which prevents a prompt response to the conductor's demand, it is but reasonable that an opportunity should be allowed the passenger to search for what is mislaid or lost, or to provide other means of payment, where the delay does not interfere with the regular duties of the officer in charge.

The delay in the present case would have been momentary, if, indeed, any had been occasioned, in permitting the plaintiff to precede the conductor in passing into the next coach, and getting the money in time for the call on Braswell, or before Braswell had been reached. Instead of complying with this request made in good faith, the conductor arbitrarily and instantly rang the bell and expelled the plaintiff, producing an interruption in the movement of the train that would have been rendered unnecessary if a brief time had been given to the plaintiff to get the money promised him.

This was a harsh exercise of power, injurious to the plaintiff and needless in the protection of the interests of the company. The cases that uphold the right of the carrier company summarily to expel from its train a passenger who does not produce his ticket or pay when called on, as required by its regulations, are all, so far as we have examined, cases of a denial of the right to demand the fare, or refusal to pay it upon some untenable ground, so that the conductor must submit or enforce his authority against the resisting passenger, and prevent his riding unless he does pay.

The facts of this case do not bring it under the operation of the rule applicable to those who persistently and wrongfully resist the demand of the conductor, acting under directions of his principal and within the sphere of his necessary powers, for the plaintiff acquiesces in the demand of his fare, and merely proposes to pass into an adjoining car to obtain the money promised under a previous arrangement with a fellow passenger. The view of the relations between the passenger and the carrier is sustained by recent decisions. In Maples v. N. Y. & N. H. R. R. Co., 38 Conn. 557, the plaintiff had mislaid his commutation ticket, and could not at the moment, when called on by the conductor, produce it, as he was by the regulations of the company and the conditions of the issue of such ticket required to do, while the conductor knew he had one, and that the time limited therein had not expired. The conductor, regardless of the explanation, and following the letter of his instructions, demanded the fare, and it not being paid, forced the plaintiff to leave the train. For this expulsion the plaintiff sued, and Park, J., delivering the opinion in the supreme court, thus declares the law:

"The plaintiff was entitled to a reasonable time to find it (the ticket). The contract requires him to show his ticket to the conductor, but he was not bound to do so immediately when required. * * * Under such circumstances the plaintiff was entitled to ride as long as there was any reasonable expectation of finding it during the trip." In Hayes v. N.Y. Central R. R. Co., decided in the supreme court at the general term held in October last, reported in Am. & Eng. R. R. Cas. vol. 18 p.- supra, the plaintiff had a ticket, but failed to find and exhibit it to the conductor when called on,